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ABC TV

Zygier case highlights limitations on consular assistance

The Foreign Minister Bob Carr says the lack of consular assistance to dual Australian-Israeli citizen Ben Zygier, or Israel's Prisoner X, was a failure by the Department of Foreign Affairs. But a former diplomat Ross Burns says while there were deficiencies in the case, dual citizens shouldn't expect unlimited consular assistance overseas.

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ELEANOR HALL: A former Australian diplomat says the case of Ben Zygier, or Israel's Prisoner X, highlights the limitations in the consular assistance that can be given to Australians holding dual citizenship.

Mr Zygier did not request or receive consular assistance after being arrested in Israel in mysterious circumstances.

The Foreign Minister, Bob Carr, says the lack of consular assistance was a failure by the Department.

But former Foreign Affairs official Ross Burns says while there were deficiencies in the case, the Department of Foreign Affairs should not necessarily be expected to be able to help dual citizens, as Lexi Metherell reports.

LEXI METHERELL: Australia's Ambassador in Tel Aviv wasn't told when Ben Zygier was arrested in Israel in early 2010.

The Foreign Minister Bob Carr has described that as a failing and a former Australian diplomat Ross Burns agrees.

ROSS BURNS: The person who really brings it all together and adds a local perspective is the head of mission, the ambassador in Tel Aviv in this case. And, not to bring that person in, I think is a major failing.

LEXI METHERELL: Foreign Affairs officials in Canberra found out about Mr Zygier's arrest via Australian intelligence officers in Israel, rather than DFAT (Department of Foreign Affairs and Trade) staff who were in the dark.

But instead of providing consular assistance to Mr Zygier, they relied on the assurances of Israeli authorities that he was being treated within his rights as an Israeli citizen.

Bob Carr says even though Mr Zygier did not request help, DFAT should have done more to follow up on the case.

Ross Burns, who's spent more than 30 years as a diplomat, partly blames cuts to resources at embassies.

ROSS BURNS: The number of senior officers in the Department has very much gravitated towards Canberra rather than allowing the ranking of ambassadors abroad to keep pace with the overall profile of a department.

So, that sort weighs the bureaucratic strength of the Department much more towards Canberra than overseas. And I think that was becoming very obvious by the late 1990s and the early noughties.

LEXI METHERELL: But Ross Burns doubts consular assistance would have helped Mr Zygier in any case.

ROSS BURNS: Australians have too high expectation of what can be achieved on behalf of dual nationals in situations that emerge in foreign countries.

LEXI METHERELL: Dr Burns agrees with Bob Carr, that the case highlights the awkward position DFAT faces when it comes to dual citizens.

ROSS BURNS: The reality in international law that we don't have automatic right of access to people if they enjoy the nationality of the host of the other country.

You know, I think we became far too unconscious, well I don't think at the official level we were unconscious, but I think it suited politicians to give this picture of our consular role being virtually all powerful and overriding another nationality, which it can't be.

You know, it's never all powerful because, as Senator Carr's often pointed, you're dealing with the jurisdiction of another country in any event. But if the person entered that country with that country's passport, then really our role is only a matter of grace and favour if the local officials feel like doing much about it.

LEXI METHERELL: DFAT has reviewed the handling of the Ben Zygier case but questions still remain about who knew what and when.

The prime minister at the time of Ben Zygier's arrest was Kevin Rudd, the foreign minister was Stephen Smith.

Both say they have no recollection of being briefed about the case even though senior advisers in their offices were.

The then attorney-general Robert McClelland has revealed he was briefed, and the Opposition says it defies belief that Stephen Smith wasn't.

But Dr Burns thinks it's understandable.

ROSS BURNS: You have to appreciate that there's a snowstorm of paper going up every day to ministers' offices. It's up to the various levels of advisors and chief of staff to sort out what should go any further.

But, because more and more issues have become political and because, for example, politicians since the 90s have demanded an upfront media role, for example, on media issues, ever more paper is going up, drawing attention to the things and in the process I'm not surprised if things get overlooked.

I mean, it's just a huge volume of material which it's difficult to prioritise.